from the I,-for-one,-hope-the-door-hits-him-in-the-ass-SEVERAL-TIMES-on-his-way-out dept

New York's Mayor Bloomberg and Police Chief Ray Kelly held a press conference to register their dismay at the court decision declaring the city's controversial "stop and frisk" program to be unconstitutional. As is to be expected, the decision will be challenged and, as is also to be expected, the Mayor and police chief wasted little time deploying their talking points in its defense. (Note on the embed: Video quality is terrible but this is only version of the entire press conference. Both the Mayor's Youtube account and NYC.gov website contain only a 12-minute, heavily-edited video of the press conference, one that ONLY shows the prepared statements and removes all of the Mayor's annoyed "interaction" with the press.)

Bloomberg's statement went long on crime reduction statistics (something he says the presiding judge [Shira Scheindlin] ignored) claiming the 8,000 guns seized over the past decade have "saved countless lives of blacks and Hispanics." He also claimed the stop and frisk program (or "stop, question and frisk," as he and Kelly refer to it) has made New York City the "poster child everyone wants to follow."

I have no doubt that there are many law enforcement agencies who view the stop and frisk program as desirable, but this says a lot more about law enforcement's mindset than it does about the program itself. Law enforcement agencies tend to believe Americans have too many rights, as is evidenced by years of rights abuse. Any program that curtails rights and gives officers free rein to stop and frisk citizens would largely believed to be a "good thing."

Kelly's defense of the program wasn't much different. His prepared remarks cited crime statistics and claimed the program was proactive in preventing criminal behavior, again stressing the 8,000 guns taken off the street over the past decade. Bizarrely, Kelly chose to illustrate the importance of the stop and frisk program by relating an anecdote having nothing to do with stop and frisk.

On Saturday a man threw a duffle bag into the trunk of a double-parked car in Washington Heights. When officers approached the man, he ran. That's suspicious behavior. They found $750,000 worth of heroin in the trunk. They arrested the suspects and spared the untold misery that three-quarters of a million dollars worth of drug addiction can cause to families who can least afford it.

Yes, running from the cops is often suspicious behavior, but the problems with stop and frisk is that it's deployed without any form of reasonable suspicion to back up the impromptu pat downs and searches. A big drug bust resulting from observed suspicious behavior isn't nearly the same thing as grabbing a few random minorities and pressing them up against the nearest wall for no apparent reason.

While Kelly's response was a bit more measured, Bloomberg made it clear that he wasn't interested in implementing some of the recommendations the judge made in her decision -- including additional oversight. Bloomberg (and Kelly) have been against third-party monitoring since day one, with the mayor notably arguing that his prized "army" would be less efficient with independent oversight because it introduces "confusion into the command structure."

So, now we'll have another layer of monitors... You're a police officer. You have to know what orders to follow. If somebody pulls a gun and you WANT TO GET HOME, you don't have time to say, "Well, now wait a second, the commissioner said one thing, the monitor said another and the IG said another." By that time, you're dead.

In Bloomberg's world, police are unnecessarily constrained by rules and regulations that prevent them from placing self-preservation above all other considerations. It should be noted that many unarmed citizens have been shot for precisely this Rule, like the recent shooting death of an unarmed teen by a police officer who reassured the homeowners' whose yard he cut through in pursuit that the teen was not a threat. The teen continued to be "no threat" until the door of the shed he was hiding in flew open and the First Rule of Policing took over.

Bloomberg went on with his answer/diatribe, directing anger at the assembled press, implicating them in this rhetorical officer's death.

And I'd like to see you go to the funeral and explain to the family why their son or husband or father is not coming home that night.

Bloomberg also addressed the court's order that officers wear body cameras at all times. According to Bloomberg, the idea is unworkable. He vividly imagined the criticism that would fly once these were implemented.

A camera on the lapel or hat of a police officer... He didn't turn the right way. My god, he DELIBERATELY did it. It's a solution that's not a solution...

There is no doubt always-on cameras can be abused by the officers wearing them. Many departments fight this sort of thing because it creates a layer of accountability, something few police departments welcome. If law enforcement agencies had worked harder over the years to maintain a solid reputation for trustworthiness and rooting out abusive officers from within their own ranks, they wouldn't be in the position of having mandatory cameras deployed.

Bloomberg's attitude throughout the press conference varied between confrontational and condescending -- a nanny-statist annoyed that his subjects were restless.

A reporter, who questioned his statement that stop and frisk was only opposed by a "handful" of critics and activists by pointing out that he'd come across "hundreds, if not thousands" of critics, received this reply.

Some of these people come from a culture where police are the enemy. Here, police are friends.

What? The American culture has its fair share of people who believe police are the enemy, or at the very least have a long way to go to be considered "friends." Bloomberg's been in power so long he's forgotten (if he ever knew) that an imbalance of power tends to make those with less much more distrustful of those with more. Cops have a lot of power and under Bloomberg this imbalance has only increased.

Bloomberg went even further with this train of thought, first insulting the public and continuing on to disparage the press (again.)

The public are not experts on policing... But if you want to find someone to put on your TV show that says they don't like this, you can find them.

Bloomberg cut loose with more condescension when fielding a question from Russia Television International about the administration's fervent defense of the unpopular (and unconstitutional program).

We, unlike many countries, want to keep all of our citizens safe, and keep the crime rate down and make sure that they get home and go to court and protect themselves -- unlike other countries in the world.

And again, when asked if the appeals process would allow stop and frisk to continue until Bloomberg is out of office, his response this time was coupled with his usual scare tactics.

Boy, I hope so. I wouldn't want to be responsible for a lot of people dying.

Yes. Every homicide investigation starts with the mayor being questioned about his involvement.

All in all, the mayor appeared to be completely irritated that his pet program had been questioned (and overruled) by a court decision. In contrast, Chief Kelly's responses were handled much more gracefully. He didn't address many questions (and those he did were swiftly taken over by Mayor Bombast Bloomberg) but those he did he handled well, without resorting to scare tactics, condescension or irritability.

For instance, his response to the appointment of independent oversight was simply to state that the appointee would find what he sees every day: good cops doing a good job. The rest he handled by stating the NYPD deploys a "wide variety" of tactics in areas of high crime or by deferring to the city's legal representative.

It will be some time before the court-ordered changes appear, if they do at all. As stated above, the city will be challenging the ruling and Bloomberg is still hard at work attempting to veto the two bills aimed at stop and frisk that recently passed the city council.

New Yorkers can at least be happy Daddy Bloomberg is on his way out, although the crop of replacement candidates doesn't seem all that promising. Americans, on the other hand, have to be concerned that the man who headed up the stop and frisk program could soon be heading the Department of Homeland Security, a position that will allow dubious tactics to be deployed at a national level.

In any event, it's obvious the court's decisions has pissed off Bloomberg and his "private army" and that can't be a bad thing.

"This in my view violates the constitution. The fourth amendment and the first amendment – and the fourth amendment language is crystal clear," he said. "It is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the constitution and then classify as top secret what the actual law is."

Gore added: "This is not right."

I keep seeing people trying to defend the program due to a single Supreme Court ruling -- Smith v. Maryland -- a 1979 case that gave rise to the "third party doctrine," which argued that if you give data to a third party, you no longer have any expectation of privacy in that data. Of course, the situation specific to that case was exceptionally different and took place in a very different world. By any plain meaning of the phrase "expectation of privacy" people certainly do not think that they're giving up their expectation of privacy just because they use an online service.

What's amazing is that the 4th Amendment is not that complicated, and certainly does not put up some giant barrier for law enforcement. All they have to do is show probable cause and get a warrant. All of this freaking out is showing that they know that they can't show probable cause to get all this data. And that should ring lots and lots of alarm bells. Thankfully, some principled politicians are seeing this and understanding the massive problems with a surveillance state.

from the notice-and-takedown-this dept

Many legal scholars have discussed the fact that copyright law and the First Amendment are, by their very natures, in conflict. Historically, the Supreme Court has gotten around this conflict by saying that things like fair use and the idea/expression dichotomy help keep things balanced -- though many have questioned whether the massive expansion of copyright law over the last century should have changed that analysis. In the Eldred case, the Supreme Court mostly rejected the argument that copyright extension was a violation of free speech, though many legal scholars find that decision a bit of a head scratcher (if you want a great analysis of why that decision makes no sense under the law, the book No Law is a worthwhile read).

But there are still other areas where changes to copyright law may be vulnerable under a First Amendment analysis. So far, the only court case (and it's still at a low level) that has been successful in attacking the copyright on these grounds is the Golan case, which focuses on a very narrow part of copyright law.

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

I'm sure that our usual copyright system defenders will pop up quickly in the comments to dismiss this as ridiculous, but it's a really strong point. The basic nature of the notice-and-takedown -- even if done by private firms -- appears to be in direct violation of the First Amendment. The fact that the DMCA effectively requires companies to take this step in order to protect themselves from liability via the DMCA's safe harbors, means that even though it's a private company doing this, they are compelled to do so by the government. It does make you wonder if a compelling First Amendment case could be made around this particular issue.

from the we-may-soon-find-out dept

It's well known that Jammie Thomas, the woman who lost her case against the RIAA for unauthorized file sharing was planning to appeal her decision -- though, we questioned some of the wisdom behind her pursuing the case. She does have a point in questioning the instructions given to the jury, which say that "making available" is distribution when that's still an open legal question with some rulings on both sides. The problem, though, is that the evidence that Thomas did participate in unauthorized file sharing is rather strong, which makes her appeal a lot less sympathetic. It looks like her lawyers may be realizing that and may be recognizing that the biggest point in Thomas' favor is that nearly everyone seems to feel the $222,000 awarded for 24 songs ($9,250 per song) seems rather excessive. With that in mind, the lawyers have now asked the judge to overrule the fine as being constitutionally excessive. You recall, of course, that the constitution has rules against cruel and unusual punishment. Two years ago there was even a research paper that argued the rates set by the law for infringement were constitutionally excessive. A year ago, that theory was first brought up in court. It's tough to see the court going for this argument, but it definitely would make the appeals process a lot more interesting.

from the way,-way,-way-too-much dept

For quite some time now, we've been pointing out how ridiculous it is that state after state after state passes "for the children" laws which clearly are unconstitutional. These laws are always thrown out by the courts. It's a total waste of taxpayer money, as the state needs to go to court to defend the law, only to have it thrown out (it's even worse when they go on to appeal). The politicians don't care. They just want to pass the law so they can show voters in their district that they're "protecting the children." Who cares if they're not actually protecting any children and actually really just wasting taxpayer money? The latest state to go through this process is Ohio -- and now reporters are finally starting to ask how much are these bogus laws costing taxpayers to defend in court? It probably won't stop politicians from passing these laws, but it's about time the press started asking this question directly to the politicians.